Formal requirement of a Will in QLD

The formal requirements for the execution of a Will in Queensland are set out in section 10 of the Succession Act 1981. It must:

be in writing;

be signed by the will-maker, or by someone else in the presence and at the direction of the will-maker, in the presence of at least two witnesses, who must be present at the same time; and

be attested and signed by at least two of the witnesses in the presence of the will-maker.

The witnesses must be over the age of 18 years and see the will-maker’s signature.

But what happens if the document falls short of the formal requirements above?

In 2006, section 18 of the Succession Act 1981 was introduced which empowers the Supreme Court of Queensland to recognize a document or part of a document as being a will if the Court is satisfied that the deceased person intended the document or part of the document to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s Will, even though the document has not complied with the formal requirements above.

Similar, legislation has been enacted in other Australian jurisdictions.

In Queensland, for a document to be recognised as an informal Will by the Supreme Court three conditions must be satisfied:

There must be the existence of a document. For the purposes of section 18, the definition of “document” includes:

any paper or other material on which there is writing;

any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and

any disc, tape or other article, or any material from which sounds, images, messages or writings are capable of being produced or reproduced (with or without the aid of another article or device).

The document must purport to state the testamentary intentions of the deceased person.

The document must be intended by the deceased person to form his or her will.